STATE OF WEST BENGAL AND ANR.versusBANDAN BAYEN AND ORS.

A                   STATE OF WEST BENGAL AND ANR.
                                          v.
                          BANDAN BAYEN AND ORS.

                               DECEMBER 7, 1995

B               [K. RAMASWAMY AND B.L. HANSARIA, JJ.]

          Service Law :

          West Bengal Board's Miscellaneous Rules, 1955-Rule 56.
c
          West Bengal Services (Secretariat Common Cadre) Rules, 1984-Rules
    4 & 7 and Schedule 2 and 2-A-West Bengal Public Service Commission
    Regulation, 1937-Regulation 31 & Schedule 2 & 2-C-Appoilllmenr-Post of
    LDC in District and Subordinate Offices-Qualification fo,-.Non-fulfilment
    of-Denial of appointment-Plea that recruitment is covered by Common
D   Cadre Rules according to which particular qualification is not a condition for
    appointmem-He/d, Recruitment governed by Boards' Miscellaneous Rules,
    hence appointment rightly denietf-West Bengal (Classification Control &
    Appeal) Rules, 1971.

E         Respondents, candidates for recruitment for the post of LDC in
    District and Subordinate Offices, who had failed in typing test, were denied
    appointment.

          Their writ petition to the High Court was dismissed by a Single
    Judge. On appeal, the Division Bench directed respondent's appointment,
F   setting aside judgment of Single Judge.

          In appeal to this court by the State, Respondent contended that Rule
    4 of West Bengal Services (Secretariat Common Cadre) Rules empowered
    the competent authority to make recruitment as per rules 7 and 4, and is
G   applicable to the list of departments specified in the schedule, which
    envisages 'Department of Land and Land Reforms'. Since the Respondents
    were working in the above said department, they are governed by the
    Common Cadre Rules, according to which passing of typing test is not a
    condition for appointment.

H         Allowing the Appeal, this Court
                                      304
                         STATE v. BANDANBAYEN                           305

      HELD : 1.1. The recruitment was properly and legally made. Respon-       A
dents having appeared and failed in the typing examination, cannot turn
round and contend that the Board's Miscellaneous Rules, 1955 are inap-
plicable to them. [308-F-G]

        1.2. The West Bangal Services (Secretariat Common Cadre) Rules,
1984 clearly indicate that they are applicable to the Secretariat and the      B
offices mentioned in the schedule. Department of Land and Land Reforms
mentioned in the Schedule, is a department in the Secretariat. Jn the
'Offices' it is mentioned the Board of Revenue. Thus Secretariat is a
separate wing and the Board of Revenue is the Head of the Department.
That gets manifested on perusal of Schedule 2 and 2-C attached to the          C
West Bengal Public Service Commission Regulation, 1937. The Regula-
tions for recruitment through Public Service Commission, are in respect
 of clerical establishment, stenographers and typists of the Secretariat and
 the Heads of the Department. (307-D, 308-A·CJ

      13. Except those mentioned in Schedule 2 and 2-C all other depart- D
ments in other respects, the district and sub-divisional offices, stand
excluded by operation of Regulation 31 of the West Bengal Service Com-
mission, 1937. Once they stand excluded from the recruitment by the
Public Service Commission the necessary concomitant result would be that
they are governed by the Board's Miscellaneous Rules, 1955. (308-E-F]    E
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 11861 of
1995.

     From the Judgment and Order dated 27.4.92 of the Calcutta High
Court in F.M.A. No. 648 of 1991.                                               F

     Tapas Chandra Ray, Ms. Mridula Ray Bhardwaj and Alok Kr.
Biswas for the Appellants.

     M.N. Krishnamani, Mrs. Sarla Chardra, Bijan Kumar Ghosh and P.
Chaudhuri for the Respondents.                                      G

        The following Order of the Court was delivered :

        Leave granted.

        The only question in this appeal is whether the respondents are H
    306                   SUPREME COURT REPORTS (1995] SUPP. 6 S.C.R.

A governed by the Rules for the regulation of the recruitment to the clerical
    service of the Secretariat and certain other offices of the Government of
    West Bengal issued in Notification No. 2083-F dated July 21, 1954 of the
    West Bengal Boards Miscellaneous Rules, 1955 for appointment to the
    Lower Divisions. The facts are not in dispute. The appellant called for the
B   names from the Employment Exchange in the notification for recruitment.
    Calling their names, the appellants prescribed passing of the written exams
    and typing with 30 w.p.m. speed as qualification apart from other qualifica-
    tions. Pursuant thereto, the names of the candidates have been sent 545
    candidates were qualified in the written examination and were required to
    pass the typing test. After conducting the typing test, respondents 44-189
C   had passed the test and the other respondents did not pass the test.
    Consequently, they could not be appointed. When they had approached
    the High Court under the Art. 226 for necessary directions, the learned
    single Judge dismissed the writ petition. But on appeal, the Division Bench
    in F.M.A. No. 648/91 by order dated April 27, 1992 set aside the order of
D   the learned single Judge directed that the appointment of respondents
    44-189 were not upset. yet directed that the respondents be appointed.
    Feeling aggrieved, this appeal by special leave has been filed.

          Pursuant to our directions dated November 2, 1995, the appellants
    have placed on record the relevant Rules relating to the Schedule 2, 2-A
E   as enumerated in Rule 4 of the Secretariat Rules referred to herembefore.
    In form of notification it is stated in column 3( c) thus :

            "Qualification required :

            School Final or its equivalent. Must have Knowledge in English
F           Typing with a minimum speed of 30 words p.m. Such knowledge
            in typing is not essential for the physically handicapped persons."

    Under Rule 65 of the West Bengal Board's Miscellaneous Rules, 1955
    qualifications for permanent appointment to the Lower Division are
G   specified of which condition (d) provides that :

            "In the case of vacancies in the district or sub-divisional offices an
            examination of candidates should be held after due notice within
            the period mentioned in rule 62 to select the best persons for the
            posts. The examination will be held in English and Bengali to test
H           (a) handwriting, (b) knowledge in English and Bengali (c) general
                     STATE v. BANDAN BAYEN                           307

       knowledge and intelligence. There will be one paper to be             A.
       answered in two hours. The test for type- writing will be for half
       an hour. A candidate should be able to transcribe accurately from
       legible handwriting at a rate of not less than 30 words per minute
       and the paper will be marked on the basis of a penalty of five
       words for· every mistake e.g. misspelling, wrong spacing, wrong       B
       paragraphing. One letter typed over another, etc. The manuscript
       will be such as is used in ordinary Government Correspondence
       and percentage of errors permissible shall not be more than 5
       percent. The examinations should be held by the District officer
       or by any senior Gazetted officer to whom he may delegate the
       duty."                                                                C

As noted earlier, pursuant to the advertisement and prescription of the
qualification, the •espondent Nos 1 to 43 had appeared and sat for the
examination. They were qualified in the written examination. They had also
appeared for the typing test and therein they were not qualified. The D
question thus emerges whether the West Bengal Services (Secretariat
Common Cadre) Rules, 1984 (for short 'the Rules') issued under proviso
to Art. 309 of the Constitution would be applicable to the method of
recruitment of L.D.Cs. to be appointed in the district and sub-divisional
offices. The Rules themselves clearly envisage that they are applicable to
Secretariat Common Cadre Rules. Rule 4 which is relevant in this case E
postulates that notwithstanding the provisions of the West Bengal (Clas-
sification Control and Appeal) Rules, 1971, the competent authority to
make the recruitment is envisaged in Rule 7. Rule 4 would be applicable
to the list of departments specified in the schedule. Schedule has been
appended and clause (iv) envisages 'Department of Land and Land F
Reforms'. At the end it is stated under the head 'Offices' '1. Board of
Revenue, West Bengal.

       Relying upon these rules, Shri M.N. Krishnamani, the learned Senior
counsel for the respondents 1-43 contended that the respondents working      G
in the Department of Land and Land Reforms are controlled by the Board
of Revenue. Therefore, they are required to be governed by the Rules
which though initially prescribed pass of the typing test but it is not a
condition for appointment. The qualification could be acquired during
probation. That rule subsequently was deleted, consequently, the respon-
dent, Nos. 1-43 need not pass the accounts test. We find no force in the     H
    308                   SUPREME COURT REPORTS (1995) SUPP. 6 S.C.R.

A contention.
        It is seen that the Rules themselves would clearly indicate that they
  are applicable to the Secretariat and the Offices mentioned in the
  Schedule. Department of Land and Land Reforms mentioned in the
  Schedule is a Department in the Secretariat. In the 'Offices' it is mentioned
B the Board of Revenue. It would thus be seen that Secretariat is a separate
  wing and the Board of Revenue is the Head of the Department. That gets
  manifested when we see Schedule 2 and Schedule 2-C attached to the West
  Bengal Public Service Commission Regulation, 1937. It clearly enumerates
  various clerical establishment, stenographers and typist of the Secretariat
C and typists in all the departments. They are all heads of Departments. That
  was also manifested in Schedule 2-C including the Inspector General of
  Prisons and the Conservator of Forests. It would thus be seen that the
  regulations for recruitment through Public Service Commission are in
  respect of clerical establishment, stenographers and typists of the
  Secretariat and the heads of the departments. Regulation 31 excludes other
D departments which envisages thus :

             "It shall not be necessary to consult the Commission with respect
             to the matters specified in clauses (a) and (b) of sub-section (3)
             of section 266 of the Act for any service or post not included in
             Schedule "C" annexed hereto the appointing aut:.: ..., ~.:r which is
E
             an authority subordinate to the Provincial Government."

         In other words, except those mentioned in Schedule 2 and 2-C, all
  other departments in other respects the district and sub-divisional offices
  stand excluded by operation of Regulation 31 of the West Bengal Public
F Service Commission Regulation 1937. Once they stand excluded from the
  recruitment by the Public Service Commission, the necessary concomitant
  result would be that they are governed by the Board's miscellaneous Rules,
  1955. They clearly envisage passing of typing as a qualification for appoint-
  ment as a LDC in the district and sub-divisional offices. It would, therefore;
G be clear that the recruitment was properly and legally made, respondent
  Nos. 1-43 and 114-120 having appeared and failed in typing examination,
  cannot now turn round and contend that the said rules are inapplicable
  and the Rules are applicable to them. Our view gets support also from the
  decision of this Court in C.A. 4531/92, dated October 22, 1992.

H         In case of future recruitment, it may be open to the respondent Nos.
                       STATE v. BANDANBAYEN                            309

.1-43 and 114-120 to appear for the examination and claim theit r1ghl to be   A
 considered for recruitments as LDCs. In the event if any of them happen
 to be barred by age, necessary relaxation of age may be given and they may
 be considered according to rules.

     The appeal is accordingly allowed and the order of the Division
Bench is set aside and that of the learned single Judge stands confirmed.     B
No costs.

K.K.T.                                                    Appeal allowed.